Reflections on Hassan v UK: A Mixed Bag on the Right to Liberty (Part 1)

A few weeks ago, the Grand Chamber of the European Court of Human Rights (GC) gave judgment in Hassan v UK. The GC found that the British government did not violate Tarek Hassan’s human rights while he was a prisoner of British forces in Iraq in 2003, although Hassan was within the UK’s jurisdiction and control. Summaries of the relevant facts and the judgment can be read are here and here.

Hassan considered the relationship between international humanitarian law (IHL) and the European Convention on Human Rights (ECHR), i.e. international human rights law (IHRL), through the prism of two specific provisions of the ECHR: Article 1 (jurisdiction) and Article 5 (the right to liberty and security). It is undoubtedly a significant contribution to the growing jurisprudence on the relationship between IHL/IHRL. Whether it is a positive contribution is more questionable, as I consider below in the first of two posts discussing this matter. This first post deals with the Article 1 aspects of the case; the second post will examine Article 5.

The UK sought to argue that Hassan was not within the UK’s Article 1 jurisdiction and, therefore, sought to distinguish the facts in Hassan from the GC’s landmark Al-Skeini v UK(GC, 7 July 2011) judgment. In particular, the UK argued that there was no Article 1 jurisdiction in Hassan because, unlike the situation in Al-Skeini,

the UK was not an occupying power in Iraq at the time of the facts in Hassan’s case (§70);

his death had not occurred pursuant to a UK security operation involving an assumption of authority and responsibility by the UK for the maintenance of security in South East Iraq (§70);

there was no room for ECHR jurisdiction “in the active hostilities phase of an international armed conflict [“IAC”]” because IHL was the applicable law (§71), and

the UK did not have exclusive or primary control over Hassan (§72).

The GC began its assessment of the Article 1 submissions with a lengthy quotation from Al-Skeini and described Al-Skeini as containing “the applicable principles on jurisdiction within the meaning of Article 1” (§74). The GC,

explained that the rationale of the Article 1 jurisdiction in Al-Skeini was state agent authority, not effective control of an area (§75);

held that state agent authority also existed in relation to Hassan because “he was within the physical power and control of the [UK] soldiers” (§76; the fact that the US carried out certain operational matters relating to his detention did not materially alter that: §78), and

rejected the UK’s argument that IHL displaced the ECHR during the active hostilities phase of an IAC. The GC pointed out that IHL had been applicable even on the Al-Skeini facts, when the UK was an occupying power and that the court had nevertheless found that the UK had exercised Article 1 over the individuals in that case, consistently with ICJ jurisprudence regarding the concurrent application of IHL and IHRL (§77).

By these findings, the GC in Hassan:

Affirmed the scope and reach of the state agent authority basis of Article 1 jurisdiction. This affirmation is especially significant for cases that are presently going through English courts. In particular, Mohammed v MoD (in which Mr. Justice Leggatt gave judgment on May 2, 2014) where the Ministry of Defence argued that it did not have Article 1 jurisdiction over Mohammed because it did not have complete control over the detention facilities in Afghanistan where he was held (see Mohammed, §§144; 146). Mr. Justice Leggatt rejected that argument based on the authority of, inter alia, Al-Skeini. That conclusion is now unassailable in the light of Hassan (the MoD has appealed against Mohammed and that appeal is likely to be heard by the Court of Appeal by summer 2015). Hassan does not, however, shed any light on what Mr. Justice Leggatt identified as being one of the “many unanswered questions” left by Al-Skeini:

“it is unclear whether, once jurisdiction is understood to rest on the exercise of control over individuals, there is any stopping point short of what the European Court in the Bankovic case saw as the logical conclusion that jurisdiction under Article 1 exists whenever an act attributable to a contracting state has an adverse effect on anyone anywhere in the world; and if so, what that stopping point is.” (Mohammed, §141).

Affirmed the principle that IHL does not displace the application of the ECHR. This affirmation is significant because, in terms of armed conflict, the context of Hassan – the active hostilities phase of an IAC – is far more acute than the context of Al-Skeini (and other cases in which the ECtHR has applied the ECHR). If IHL does not displace the ECHR on the facts of Hassan then it is difficult to imagine the scenario in which it could plausibly be suggested that IHL could ever displace the ECHR.

Monday’s post will feature an examination of Hassan and the relationship between IHL and Article 5, ECHR.